MISC 13-479144

June 30, 2015

SANDS, J.

DECISION

This action involves an appeal filed by Plaintiff Robert Dandreo (Plaintiff) of a decision dated June 30, 2013 (the ZBA Decision) issued by Defendants Members of the Town of Swampscott (the Town) Zoning Board of Appeals (the ZBA), which had granted Defendant DiGiorgio & Messina Construction Co., Inc. (D&M) an Assisted Living Facility Special Permit, a Site Plan Special Permit, and a dimensional Variance (together, the Permits). D&M had submitted applications for the Permits (the Applications) in furtherance of its plans to build a fifteen unit independent living facility for persons aged fifty-five and above in one and two story single-family residences (the Project). Plaintiffs concerns were, inter alia, that the Project would impact nearby water and sewer lines, would result in overcrowding of the neighborhood, and would result in increased parking and traffic congestion.

Plaintiff filed his unverified Complaint on August 21, 2013, by which he appealed the ZBA Decision pursuant to G. L. c. 40A, § 17. On September 16, 2013, D&M, together with Defendants Peter A. Pantazelos and Kostas A. Pantazelos, Trustees of P&K Funding Trust (the Trust) (together with D&M, the Applicant), filed an Answer to the Complaint. [Note 1]

A case management conference was held on October 21, 2013, at which the parties represented that they intended to enter mediation. Thereafter, several mediation sessions before REBA Dispute Resolution, Inc. (REBA) were held, the last of which was held on April 29, 2014. On May 8, 2014, REBA reported that the case had settled. In connection with such settlement, the parties executed a Memorandum of Agreement dated May 29, 2014 (the Agreement).

On October 6, 2014, the Applicant filed a verified Complaint in this action seeking to hold Plaintiff in contempt, and for a declaratory judgment that the Agreement was a valid, effective contract, that Plaintiff had breached the Agreement, and enforcing the Agreement. On October 27, 2014, Plaintiff filed a verified Answer to the Applicants Complaint for Contempt. On November 4, 2014, Plaintiff filed a memorandum in opposition to the issuance of a contempt summons against him. On November 14, 2014, the Applicant filed an opposing memorandum arguing that a contempt summons should issue. A status conference was held on November 14, 2014, at which this court determined that there was a material dispute of facts as to whether there had been a breach of the Agreement. On December 11, 2014, a pre-trial conference was held, after which the pre-trial conference was continued and a Summons on the contempt Complaint was issued. A continued pre-trial conference was held on December 30, 2014. An evidentiary hearing on the Applicants Complaint for contempt was held on March 30, 2015. The parties filed their post-trial briefs on May 18, 2015, and, at that time, the matter was taken under advisement.

Testimony at the evidentiary hearing for the Applicant was given by Ralph DiGiorgio (DiGiorgio) (principal of D&M). Testimony for Plaintiff was given by Gino Cresta (Cresta) (Town Engineer and Town Department of Public Works (DPW) Director) and Plaintiff himself. Thirteen exhibits were submitted into evidence by the parties.

Based upon the sworn pleadings, the evidence submitted at the evidentiary hearing, and the reasonable inferences drawn therefrom, I make the following findings of material facts:

1. Plaintiff is the owner and resident of 28 Vaughan Place, in Swampscott, Massachusetts (Plaintiff Property). Plaintiff is an abutter to an abutter of the site location of the Project (defined, infra. as the Project Property) to the east. Access to Plaintiff Property is via Vaughan Place, which, at present, terminates on the eastern edge of the Project Property.

2. Years before this dispute arose, Plaintiff was involved in a separate dispute with his neighbor across Vaughan Place with respect to Plaintiffs access to and use of private water and sewer lines that had been installed by Plaintiffs neighbor. With permission of the Town, Plaintiff had connected Plaintiff Property to his neighbors private water and sewer lines. However, by Judgment of the Essex County Superior Court (the Superior Court Judgment) dated February 13, 1995 in a case entitled Riccio v. Dandreo (No. 91-22639), the court stated, in relevant part, as follows:

defendant is prohibited and enjoined from connecting to or making use of plaintiffs water and sewer mains [in Vaughan Place] unless or until they have been provided written permission by the plaintiffs or the town has declared, by ordinance or vote of the towns governing body, to accept the plaintiffs water and sewer mains as a part of the public systems of the town.

As a result of the Superior Court Judgment, Plaintiff hired contractors to install separate private water and sewer lines connecting to Plaintiff Property. In connection with this work, Plaintiff also paid to extend Vaughan Place to its current point of termination at the boundary of the Project Property (defined, infra). [Note 2]

3. By vote of the Town dated May 3, 1995, the Town voted that the paved parts of Vaughan Place be accepted as a public way for the reason that the Town has had the open and notorious use for a period of twenty (20) years or more, and therefore, has acquired a prescriptive easement in these streets; and that said streets should be listed among the accepted streets in their present configuration. [Note 3]

4. The Trust owns an undeveloped parcel of land (the Project Property) designated on Swampscott Tax Map 7 as Lots 213-248 and 250-255, which is the proposed location for the Project. As proposed, the Project (which is entitled Villas at Vaughan Place) would comprise fifteen townhouse-style condominium residences for persons aged fifty-five and above, access for which would be via Vaughan Place by means of an access road located on the Project Property running to each of the fifteen condominiums, which would be connected to Vaughan Place at the point where it abuts the Project Property. The plans for the Project were prepared by Engineering Alliance, Inc. (EAI), and were originally dated April 9, 2012, and revised on August 31, 2012, October 3, 2012, March 5, 2013, and June 19-20, 2013 (the Plans). [Note 4]

5. Pursuant to the ZBA Decision, the ZBA approved the Project and the Plans, pending final approval of the Plans by the DPW and the Swampscott Fire Department (FDS). [Note 5] The ZBA Decision also conditioned such approval upon D&Ms payment of a Mitigation Payment (in an amount to be determined) in lieu of creating access to the Project via Archer Street -- which payment would be equal to the amount that it would cost to create such access (which will not be created) in the area labeled Mitigation Payment Area in a plan annexed to the ZBA Decision.

6. After the ZBA issued the ZBA Decision, Plaintiff commenced this action. [Note 6] Following the October 21, 2013 case management conference, this court issued an order of even date, stating, inter alia, as follows:

1. Plaintiff shall submit a written settlement proposal to Defendants by Friday, October 25, 2013, and report to this court . . . in writing, that such proposal has been submitted.

2. The parties have agreed to enter mediation. The parties shall report to this court . . . in writing, the date and provider of such mediation by Friday, October 25, 2013. The parties shall also report the outcome of the mediation in writing.

. . .

5. The court strongly encourages the parties to conduct settlement discussions. In the event your case is settled, please contact the court as soon as possible.

In accordance with these directives, the parties entered mediation before REBA in an attempt to settle their dispute. On May 8, 2014, REBA reported that the case had settled pursuant to the Agreement, which provides, in relevant part, as follows:

Next steps:

(1) Hydrant flow test to be done by . . . DPW by 5/7/14, subject to availability of DPW with results to be shared with Plaintiff.

(2) [DiGiorgio] and [Plaintiff] willmeet by 5/7/14 to negotiate the following:

(a) shared construction access between Archer Street and Vaughan Place during construction

(b) reasonable compensation to [Plaintiff] to reimburse him for his construction costs, but not legal fees, incurred by him in constructing his water and sewer line in Vaughan Place

(c) utility construction for water loop & sewer in Vaughan Place together with other utilities in accordance with the approved plan. [Note 7]

(3) Assuming that the negotiation described in [Paragraph] (2) above is successful, Jill Mann, Esq. [Applicants counsel (Mann)] will draft a settlement agreement by 5/14/14, which will contain, including without limitation, provisions for:

(a) termination of the existing litigation, and

(b) exchange of mutual releases.

(4) [D&M] will file with the [ZBA] a request for modification of the [ZBA Decision] to provide for shared access between Archer Street and Vaughan Place during construction of all Roadway Infrastructure and will pursue reasonable efforts to have the [ZBA] approve such a modification. Such request shall be filed by May 28, 2014. Denial of such modification by the [ZBA], after reasonable efforts by [D&M], shall not invalidate or render this Agreement null and void or unenforceable, in whole or in part.

(5) The [Agreement] will be executed by [Plaintiff] and by [the Trust] and [D&M] by May 21, 2014.

(6) This Memorandum of Agreement is intended to be enforceable notwithstanding that a more complete written agreement is contemplated.

The Agreement states that it was [e]xecuted this 29th day of May, 2014" [Note 8], and contains the signatures of Samuel A. Vitali (Plaintiffs counsel) on behalf of Plaintiff and DiGiorgio on behalf of D&M. Notwithstanding Paragraph 5 of the Agreement, no representative ofthe Trust appears to have signed the Agreement. DiGiorgio testified that he had been authorized by the Trust to enter into the Agreement on behalf of the Trust.

7. In accordance with Paragraph 1 of the Agreement, on May 8, 2014, Richard A. Salvo, P.E. (Salvo) of EAI performed a hydrant flow test (the Flow Test) on hydrants located on Archer Street and Vaughan Place for the purpose of [d]etermin[ing] existing static and residual pressure for the existing 8-inch main located on Archer Street [Note 9] and for the existing 6-inch main located on Vaughan Place. Thereafter, Salvo issued an undated report of the results of the Flow Test (the Flow Test Report), which indicated that [t]he [Archer Street] main will yield [a flow of] 100 +/- GPM at 10 PSI. The flow was not enough to register on the gage. Hydraulics on Archer Street and Eureka Ave are not good. Salvo further reported that [t]he [Vaughan Place] main will yield 795 GPM at 42 PSI. [Note 10] The Flow Test Report confirmed that a looped connection between Vaughan Place and Archer Street would be required in order to maintain adequate water pressure to service both Plaintiff and the Project. [Note 11]

8. In accordance with Paragraphs 2-4 of the Agreement, Mann, on behalf of D&M, sent a letter to the ZBA dated May 28, 2014 (the Modification Request), which states, in relevant part, as follows:

Over the past several months, [D&M] has been working with [Plaintiff] to resolve his appeal [of the ZBA Decision]. . . . One facet of the [Agreement] involved seeking a modification to Section 12(j) of the [ZBA Decision], which provides: All construction related traffic shall be through Vaughan Place. As part of the [Agreement], [Plaintiff] has requested that [D&M] seek permission from the [ZBA] to also use Archer Street during the construction process. In support of this request, [D&M] notes that given the requirement to loop the water mains lying in Vaughan [Place] and Archer [Street], there will be construction activity within Archer Street, therefore allowing limited and temporary access over Archer Street is logical and is not an unreasonable request. Accordingly, on behalf of [D&M], I hereby request that the [ZBA] aid in the final settlement of the appeal by considering [D&M]s request to modify the [ZBA Decision] to allow access during construction only [emphasis in original] over both Archer Street and Vaughan Place. I respectfully suggest that such a modification would not constitute a substantial change in the conditions of the [ZBA Decision] and that such a change, approved in conjunction with the settlement of a pending appeal, is within the power and authority of the [ZBA] to consider during a public meeting. Please place this matter on the agenda of the [ZBA]s next regularly scheduled meeting.

9. In accordance with Paragraph 2(c) of the Agreement, the Applicant arranged for a revised grading and drainage plan (the 2014 Utilities Plan) for the Project to be prepared by EAI, which depicted the proposed looped system of water and sewer lines between Archer Street and Vaughan Place, which system the Flow Test indicated was the only way to maintain adequate water pressure. The 2014 Utilities Plan depicted existing private water and sewer lines on Vaughan Place (including the lines servicing Plaintiff Property) as remaining in place post-construction. [Note 12]

10. In accordance with Paragraph 2(b) of the Agreement, the Applicant sought and obtained an estimate of the reasonable construction costs associated with Plaintiffs installation of water and sewer lines in Vaughan Place (the Estimate). The Estimate, which was dated October 2, 2014, was prepared by Bob Wogan of L.A.D. Co., Inc., a general contractor, and indicated that the estimated costs for Plaintiffs construction of water and sewer lines in Vaughan Place would total $45,150.00, including installation (and related testing), repaving, and obtaining any/all necessary bonds and permits. [Note 13] The Applicant proposes this amount as the payout to be made to Plaintiff pursuant to Paragraph 2(b) of the Agreement.

11. By decision dated October 15, 2014 (the Amended Decision), the ZBA, after a public hearing, denied the Modification Request based upon concerns of other abutters as to the use of Archer Street for construction access to the Project Property.

12. Both DiGiorgio and Plaintiff testified that they engaged in negotiations (via telephone conversations, e-mails, and text messages) with respect to the topics noted in Paragraph 2 of the Agreement. According to DiGiorgios testimony, negotiations between the parties began to break down starting in August of 2014, even before the Amended Decision issued. The Applicant reports that it is ready, willing, and able to make the payment to Plaintiff contemplated by Paragraph 2(b) of the Agreement in the amount set forth in the Estimate, and to commence the necessary work to install the looped sewer and water line system that the Flow Test Report indicated would be necessary. Nonetheless, the Applicant alleges that Plaintiff refuses, in bad faith, to negotiate the details of the settlement with [D&M] and refuses, in bad faith, to provide [D&M] with an amount that constitutes reasonable compensation to reimburse him for the costs of his water and sewer line installation . . . . [Note 14]

13. Plaintiff testified that he believed the Estimate did not fully encapsulate the work that I had actuallydone to build [the extension of Vaughan Place] and install myutilities. [Note 15] Plaintiff stated in his Answer to the Complaint for contempt that he proposed a payment amount, under Paragraph 2(b) of the Agreement, of $75,000.00, and that he alternatively proposed that no such payment be made, and that the Applicant instead utilize only Archer Street for all water and sewer connections. [Note 16] However, at the evidentiary hearing, Plaintiff testified that [w]e never got to the point where I gave him a hard number because we never got to the point where I got the documents that I was expecting which would reflect what our discussions were around the utilities and things to do with the utilities. He further clarified that the documents that [he] was expecting was a finalized, approved utilities plan depicting the actual installation plans for water and sewer lines.

14. Cresta testified as to his opinion of best engineering practices with respect to installation of water and sewer lines connecting to the Project Property. He stated that the Flow Test Report confirmed that a looped water system connecting to both Archer Street and Vaughan Place was necessary, but opined that the 2014 Utilities Plan was not optimal, since it provided for the existing private water and sewer lines on Vaughan Place (which service Plaintiff Property and the property across Vaughan Place) to remain in place. Cresta opined that such existing lines should be removed and replaced with a single system servicing all properties. [Note 17] He further stated that he did not know if Vaughan Place was public or private (or if the existing water and sewer lines running under Vaughan Place were public or private), but that he would approve [Note 18] [the 2014 Utilities Plan] the way it is if it was determined that [Vaughan Place] was a private way -- but not if it were a public way. [Note 19] He stated that, in order to receive his recommendation of approval, the 2014 Utilities Plan would require minor modifications in the normal course of securing permits for installation of utilities, and that Salvo had reported D&Gs willingness to do whatever I required [D&G] to do with respect to installation of water and sewer lines.

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A. The Applicants Request for an Order of Contempt Against Plaintiff

The Applicant now requests that this court hold Plaintiff in contempt pursuant to Mass. R. Civ. P. 65.3 for Plaintiffs alleged non-compliance with the Agreement. Pursuant to said rule:

Enforcement of compliance with the following court orders shall be sought by means of a separate civil proceeding denominated as a civil contempt proceeding: (1) temporary restraining orders, preliminary or permanent injunctions pursuant to Rule 65, or stipulations in lieu thereof; (2) orders issued pursuant to Rule 70; and (3) any other orders or judgments entered pursuant to these rules, for the violation of which civil contempt is an appropriate remedy, except for matters cognizable under Rules 26(c), 36(a) and 37.

Mass. R. Civ. P. 65.3(a). A Complaint seeking an order of contempt must include, inter alia, a complete verbatim statement of the injunction, stipulation, order or judgment involved, or a copy thereof if available, and the name of the issuing judge where appropriate . . . . Mass. R. Civ. P. 65.3(c)(1).

The Applicants Complaint for contempt does not specify what order or directive of this court that Plaintiff has allegedly violated. If the court reads between the lines of the Applicants factual allegations, the Complaint could be read to imply that the directive allegedly violated by Plaintiff is this courts October 21, 2013 Post-Hearing Order (which is referenced in the Applicants motion papers), in which the court directed Plaintiff to submit a settlement proposal and directed the parties to engage in settlement discussions. However, upon a review of the Applicants prayer for relief, it is clear what the Applicant actually seeks is not an order of contempt for breach of the October 21, 2013 Order, but rather a declaratory judgment declaring that the Agreement is a legally binding agreement and an order of specific performance of the Agreement, as well as certain other related
relief stemming from Plaintiffs alleged breach of the Agreement.

The directives cited by Plaintiff were issued by this court in response to representations made by the parties at the October 21, 2013 hearing, at which the parties indicated that they were willing to enter into settlement negotiations. The court therefore directed Plaintiff to submit a settlement proposal and encouraged the parties to discuss settlement possibilities. Although the exact contents of Plaintiffs settlement proposal are not clear (and, in any event, would not be admissible), it is not in dispute that Plaintiff actually did submit such proposal. Likewise, it is undisputed that Plaintiff did, in fact, engage in settlement talks. Thus, it does not appear that Plaintiff actually violated the October 21, 2013 Order. In any event, the directives cited by the Applicant were issued by this court as a means of encouraging settlement discussions by the parties, not to somehow impose an obligation upon Plaintiff to settle his case and/or to force him to give up his right to a day in court. It is indeed unfortunate that the courts directives that were issued as a means of avoiding unnecessary litigation have actually engendered litigation.

Based upon the foregoing discussion, I find that the Applicant has not identified any order of this court that Plaintiff has violated. Nonetheless, while Plaintiff does not appear to be in breach of some directive of this court, there is some authority for the use of contempt proceedings to enforce (or to determine the enforceability) of a settlement agreement betweenlitigants. E.g., Cooper v. Keto, 83 Mass. App. Ct. 798 , 808-809 (2013) (declining to issue an order of contempt for breach of a settlement, but enforcing said settlement); DeWolfe Co. v. Presidential Dev. Corp., No. 1999-2776- C, 2003 WL 1505766 (Mass. Super. Mar. 18, 2003) (construing a complaint for contempt as a motion to enforce a settlement). This is an expeditious and economic use of judicial resources because it enables the court that adjudicated the merits of a dispute to oversee the parties compliance with their resolution of said dispute. As such, the court construes the Applicants Complaint for Contempt as a motion to enforce the Agreement, and will therefore rule as to the enforceability of the Agreement and as to whether Plaintiff has violated his obligations thereunder.

B. The Parties Obligations Under the Agreement

Pursuant to the Agreement, the parties had three primary obligations, which, when satisfied, would result in the parties entering into a final settlement agreement dismissing this case and releasing all claims. First, the Applicant was required to arrange for the Flow Test (which, the parties testified, was needed to confirm whether a loop system would be needed in order to obtain adequate water pressure to service the Project, as was expected). Second, both parties were obligated to come together to negotiate three issues: shared construction access between Archer Street and Vaughan Place during construction, utility construction for water loop & sewer in Vaughan Place together withother utilities in accordance with the approved plan, and reasonable compensationto [Plaintiff] to reimburse him for his construction costs, but not legal fees, incurred by him in constructing his water and sewer line in Vaughan Place. Third, and in connection with the parties negotiations, the Applicant was required to file a request for modification of the [ZBA Decision] to provide for shared access between Archer Street and Vaughan Place during construction of all Roadway Infrastructure and [to] pursue reasonable efforts to have the [ZBA] approve such modification. Thereafter, [a]ssuming that the [parties] negotiationdescribed in [Paragraph 2 of the Agreement] is successful, the Applicants counsel was to draft a final settlement agreement pursuant to which Plaintiff would agree to the dismissal of this case, and all parties would release their claims against each other.

The first and third of these obligations (i.e., the Flow Test and the Modification Request) are more easily addressed, as they implicate easily verifiable facts. The second of these obligations (i.e., the parties settlement negotiations) is somewhat thornier, as it involves an assessment of what the parties said to each other and whether theyconducted themselves with good faith in carrying out their settlement negotiations.

The Applicant argues that all obligations pertaining to the Flow Test (under Paragraph 1 of the Agreement) and the Modification Request (under Paragraph 4 of the Agreement) have been satisfied. Plaintiff claims that the former obligation has not been satisfied because the Flow Test revealed that a loop system would need to be constructed, and that the Modification Request was insufficient to satisfy the latter obligation.

With respect to Paragraph 1 of the Agreement (the Flow Test), the Agreement, on its face, does not state -- nor does it imply -- that the Flow Test had to reveal adequate water pressure without a loop system in order to satisfy this obligation. Rather, the only obligation was to conduct the Flow Test. [Note 20] Moreover, based upon the testimony of Cresta, Plaintiff, and DiGiorgio (as well as the March 5, 2013 revision to the Plans and the ZBA Decisions reference thereto) it is clear that all parties understood and expected that a looped system was overwhelmingly likely to be required.

With respect to Paragraph 4 of the Agreement (the Modification Request), the Agreement is utterly devoid of any language stating or implying that a full, formal application to the ZBA must have been made by a date certain or that the Modification Request had to be approved by the ZBA. Rather, all that was required of the Applicant was to file with the [ZBA] a request for modification-- which the Applicants counsel timely did. [Note 21] Moreover, the Agreement provides that [d]enial of such modification by the [ZBA], after reasonable efforts by [D&M], shall not invalidate or render this Agreement null and void or unenforceable, in whole or in part.

In sum, I find that all obligations set forth in Paragraph 1 (pertaining to the Flow Test) and Paragraph 4 (pertaining to the Modification Request) of the Agreement have been satisfied.

We turn next to the parties obligations, under Paragraph 2 of the Agreement, to negotiate with respect to construction access, utilities installation, and compensation to Plaintiff.

With respect to construction access, it is clear -- based upon the Modification Request, which requested exactly what Plaintiff had requested with respect to splitting construction access between Archer Street and Vaughan Place -- that the parties negotiations regarding construction access were successful. Unfortunately for Plaintiff, the ZBA denied the Modification Request. However, that possibility was specifically foreseen by the parties, who nonetheless agreed that [d]enial of such modification by the [ZBA], after reasonable efforts by [D&M], shall not invalidate or render this Agreement null and void or unenforceable, in whole or in part. Thus, I find that any/all obligations set forth in Paragraph 2(a) of the Agreement have been satisfied.

With respect to utilities installation, Plaintiff specifically testified, in response to his attorneys question as to whether he would have an objection if [the Applicant] put a new water line in (as Cresta and the ZBA had required), that he would have no such objection. Likewise, D&G was willing to do whatever [Cresta] required [D&G] to do with respect to installation of water and sewer lines. Moreover, Cresta stated that only minor modifications to the 2014 Utilities Plan in the normal course of securing permits for installation of utilities were required in order to secure his approval. He further testified that such a modified utilities plan would not be expected to be submitted to him until [j]ust prior to development.

In sum, no party had any objection to Crestas recommended work, which, when implemented, would result in Crestas approval, on behalf of the DPW, of the Plans (as revised to incorporate Crestas recommendations) -- a requirement of the ZBA Decision. Thus, it is clear that the parties negotiations regarding utilities installation were successful. Nothing in Paragraph 2(c) of the Agreement states or implies that receiving final approval of the DPW (which is a condition of the ZBA Decision) is somehow a condition precedent to the Agreement becoming binding upon the parties. [Note 22] In sum, I find that all obligations set forth in Paragraph 2(c) of the Agreement have been satisfied.

The final -- and clearly most contentious -- topic that the parties agreed to negotiate was reasonable compensation to [Plaintiff] to reimburse him for his construction costs, but not legal fees, incurred by him in constructing his water and sewer line. The Applicant argues that Plaintiff has refused, in bad faith, to comply with his obligation to negotiate this point. Plaintiff argues that he has negotiated in good faith, but that the parties simply have not reached an agreement.

It is clear that the Applicant made a good faith effort to negotiate Plaintiffs compensation under Paragraph 2(b) of the Agreement by obtaining and sending to Plaintiff the Estimate, which provided an estimate of the cost of installing water and sewer lines servicing Plaintiff Property (as well as related testing), repaving Vaughan Place upon the completion of such work, and obtaining
any/all necessary bonds and permits to do such work. [Note 23] In response to this effort, however, Plaintiff has essentiallydone nothing. He has not provided a counter-estimate of his costs incurred in installing his water and sewer lines, nor has he provided actual proof of the cost thereof -- which proof he admitted he did not have. [Note 24] Rather, all Plaintiff offers is that the Applicants Estimate is insufficient.

Plaintiffs basis for this conclusion is the subject of conflicting allegations on Plaintiffs part. On the one hand, Plaintiff argues that the Estimate does not compensate him for the cost of extending Vaughan Place to its present location. This argument is refuted by the plain language of the Estimate itself, which clearly includes compensation for the cost of paving Vaughan Place once the required utilities installation is completed. Moreover, Plaintiffprovides no suggestionas to what this additional amount to which he is allegedly entitled would be, nor proof of his actual costs. [Note 25]

On the other hand, Plaintiff argues the Estimate was premature and that an accurate cost could not be put on the job at this point. Theres more work required than what [the Estimate] shows. [Note 26] Based upon this statement, it appears that what Plaintiff actually wants, as compensation under Paragraph 2(b) of the Agreement, is to receive an amount equal to the actual cost that will be incurred by the Applicant in order to implement Crestas recommended loop utilities plan. However, nowhere in the Agreement is there any language stating or implying that Plaintiffs compensation (for work commissioned by Plaintiff approximately twenty years ago) would have any relation to the Applicants present costs of implementing Crestas recommended loop utilities plan.

In sum, it is plainly unreasonable for Plaintiff to take the position that the Applicants offer is unreasonable, but offer no apparent counterproposal based upon his own professional estimate. It is likewise unreasonable for him to attempt to demand payment equal to the Applicants present costs -- which will likely be significantly higher than Plaintiffs own costs, due to, among other reasons, the inferior quality of the existing system (which was established by Crestas testimony) and the inflated costs of labor and materials that has resulted from approximately twenty years of inflation. In view of the facts that (a) the Flow Test has been completed, (b) the Modification Request has been sent to the ZBA, and (c) the parties have reached an agreement as to all issues set forth in the Agreement other than compensation to be paid to Plaintiff, it is clear that Plaintiffs claims that the Agreement needs to be taken as a whole and that [t] here were several other things that [he] was expecting [to be] discussed before [the parties] graduated to that point in the discussion of exchanging compensation figures are subterfuge for Plaintiffs transparent attempt to delay the consummation of the parties Agreement.

In view of the foregoing discussion, I find that the Applicant has, to date, satisfied all obligations under Paragraph 2(b) with respect to negotiating an agreed-upon compensation to be paid to Plaintiff. I find that Plaintiff has breached his obligations under Paragraph 2(b) with respect to negotiating an agreed-upon compensation to be paid to him.

C. The Enforceability of the Agreement

Having found Plaintiff to have violated Paragraph 2(b) of the Agreement, it is necessary to determine whether the Agreement may be enforced against Plaintiff, and, if so, what recourse is available to the Applicant. The Applicant argues that the Agreement contains all the essential terms of the parties agreement, and merely calls for a future writing to memorialize the parties final agreement upon the resolution of the [n]ext steps anticipated by the parties. Plaintiff argues that the Agreement was nothing more than an agreement to agree, and claims that the Settlement is not a valid, binding contract.

It is beyond dispute that the Agreement contains mutual obligations by all parties, as well as mutual consideration for undertaking said obligations. It is likewise undisputed that all parties freely entered into the Agreement and manifested their willingness to be bound thereby. However, generally speaking:

the fact that parties contemplate the execution of a final written agreement effects a strong inference that the parties do not intend to be bound byearlier negotiations or agreements until the final terms are settled. [However, s]aid fact does not conclusively establish such intention. If all the material terms which are to be incorporated into a future writing have been agreed upon, it may be inferred that the writing to be drafted and delivered is a mere memorial of the contract already final by the earlier mutual assent of the parties to those terms. A failure of the parties to agree on material terms may not merely be evidence of the intent of the parties to be bound only in the future, but may prevent any rights or obligations from arising on either side for lack of a completed contract.

Paragraph 6 of the Agreement specifically states that the Agreement was intended to be enforceable notwithstanding that a more complete written agreement is contemplated. This provision cannot be read out of the contract, as would result if the court were to adopt Plaintiffs urged interpretation of the Agreement as nothing more than a non-binding agreement to agree. Rather, this provision clearly entails that the parties intended to bind themselves to moving forward with resolving the remaining [n]ext steps that theyidentified as necessaryto conclude this dispute -- after which they would proceed to dismiss this case and release all claims against each other. Moreover, the Agreement provides a framework for the resolution of all remaining matters to be resolved. See
Targus Grp., 76 Mass. App. Ct. at 431. Under the circumstances, it is clear that the parties viewed those details as minor housekeeping matters that would be resolved in due course -- which is obviously why REBA reported that the case had been settled. All that remained to be done was that the Applicant would conduct the Flow Test and send the Modification Request to the ZBA (which, as found, supra, have occurred), and the parties would exchange their numbers as to the payout to Plaintiff (which the Applicant has done, but Plaintiff refuses to do). Upon doing so, the parties, in accordance with Paragraph 3 of the Agreement, would enter into a final stipulation dismissing this case and issuing mutual releases. [Note 27]

As the court has already found, supra, the Applicant has satisfied all its duties under Paragraphs 1, 2, and 4 of the Agreement; nonetheless, Plaintiff now refuses to honor its obligation under Paragraph 2(b) of the Agreement to submit his own (reasonable) estimate of his actual costs, so that the parties will be able to settle on a number. Yet, it is well-settled that [e]very contract implies good faith and fair dealing between the parties to it. The implied covenant of good faith and fair dealing provides that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451 , 471 (1991) (quotations omitted). As found, supra, Plaintiffs ongoing refusal to submit a counter-estimate of his costs incurred in installing his water and sewer lines is plainly unreasonable, as is his insistence upon waiting to submit such counter-estimate until matters unrelated to his compensation (namely, any issues pertaining to the Flow Test, the Modification Request, and/or obtaining finalapprovalof the 2014 Utilities Plan) are resolved. Indeed, under the circumstances, Plaintiffs position would seem to be little more than a pretext to justify holding out for a larger settlement offer from the Applicant. Irrespective of the genuineness of his motives, I find that Plaintiffs refusal to submit a counter-estimate of his costs incurred in installing his water and sewer lines constitutes a violation of Plaintiffs implied duty of good faith and fair dealing in proceeding to resolve the [n]ext steps contemplated by the Agreement.

In view of the foregoing, I find that the Agreement is a valid, enforceable agreement that presently imposes upon Plaintiff a duty of good faith and fair dealing to carry out his obligations to negotiate in good faith as to compensation to be paid to him pursuant to Paragraph 2(b) of the Agreement. The Applicant has offered to pay to Plaintiff the amount set forth in the Estimate. By unreasonably refusing to submit a counter-estimate (or proof of his actual costs) based on his perception that doing so was premature, Plaintiff has waived his chance to do so. Therefore, since Plaintiff has failed to articulate any specific basis for his contention that the Estimate was insufficient, I find that the Estimate represents a reasonable estimate of the proper amount to be paid to Plaintiff pursuant to Paragraph 2(b) of the Agreement. [Note 28]

D. Conclusion and Holding

Based upon the foregoing discussion, the court has found that the Agreement is a valid and binding agreement, and that all that remains to be done in order to trigger the obligation (under Paragraph 3 of the Agreement) to enter into a final stipulation dismissing this case and issuing mutual releases is for the payout under Paragraph 2(b) of the Agreement to be made to Plaintiff. It is therefore hereby ORDERED that the Applicant shall tender payment to Plaintiff in the sum of $45,150.00 (the amount of the Estimate), which shall be submitted to Plaintiffs counsel -- together with an executed stipulation of dismissal (with prejudice) and mutual release for countersignature by Plaintiff (or his counsel on his behalf) -- within ten days of the issuance of this Decision, and shall immediately notify this court (Jennifer Masello, Sessions Clerk), in writing, that same has been done. All proceedings in this action shall be stayed for thirty days for the parties to finalize and to file said stipulation. Final Judgment in this case shall enter upon the final resolution of all outstanding matters, as provided, supra. In the event that such dismissal is not filed by Friday, July 31, 2015 (and provided the Estimate has been timely paid by the Applicant to Plaintiff as directed, supra) final judgment dismissing this case, with prejudice, shall issue on Monday, August 3, 2015.

FOOTNOTES

[Note 1] On November 21, 2013, counsel for the ZBA filed a notice of appearance on behalf of the ZBA. The ZBA has, in general, taken a passive role in this litigation.

[Note 2] Copies of the bills for this work are not in the trial record.

[Note 3] In 2014, Plaintiff and several of his neighbors commenced an action in Essex County Superior Court (No. 2014- 1405C) seeking a determination as to whether Vaughan Place is a public or private way. The pleadings and docket for that case were not submitted into evidence by the parties.

[Note 4] Defendants Exhibit 9, a grading and drainage plan, shows an additional revision dated July 24, 2013. The Applicants principal testified that the date of this revision was actually July 24, 2014.

[Note 5] Cresta testified that the usual course of obtaining zoning approvals in the Town is that the ZBA provisionally approves submitted plans, subject to the final recommendation of approval by specific Town agencies (here, the DPW and the FDS) whose expertise is needed as to technical issues. After obtaining ZBA approval, applicants then work with those agencies to obtain a final recommendation of approval -- which may entail revisions to plan(s) already approved by the ZBA, which revised plan(s) would be submitted to the ZBA in connection with the agencys recommendation of approval.

[Note 6] While Plaintiffs Complaint indicated that his concerns were primarily related to utilities, overcrowding, and traffic/parking, he testified at the evidentiary hearing that he was concerned that the Project would come to include communal community space and that he objected to the ZBAs decision to route all construction traffic via Vaughan Place rather than Archer Street. He also testified that he had concerns with the mitigation payment discussed in the ZBA Decision -- specifically, that it would not be made in lieu of creating access to Plaintiff Propertyvia Archer Street.

[Note 7] As discussed, infra, the parties disagree as to the meaning of the approved plan. In light of Crestas testimony as to the process of obtaining final approval of the Plans (see discussion, supra, at n. 5), the approved plan refers to the Plans (which include a water and sewer plan) already approved by the ZBA, which, as Cresta testified, will be subject to revision to implement Crestas recommendations (which the Applicant is willing to implement) and then resubmitted to the ZBA with Crestas recommendation of approval. Cresta testified that this process typically does not occur until just before ground is broken on a building project.

[Note 8] The Applicant testified that the Agreement was actually executed on April 29, 2014, which was the date of the final REBA mediation session. The Modification Request (defined, infra) erroneously states that the parties reached the Agreement on March 29, 2014.

[Note 9] DiGiorgio testified that the Archer Street water main is owned by the City of Lynn, but his testimony was contradicted by that of Cresta, who testified that said water main is actually owned by the Town.

[Note 10] It is undisputed that the Flow Test Report was provided to Plaintiff, in accordance with the Agreement.

[Note 11] DiGiorgio testified that the purpose of the Flow Test was to determine if a single connection to the water main on Vaughan Place could service the Project, or whether a system connecting the Project to both the Vaughan Place water main and the Archer Street water main would be required. He further testified that all the parties, at mediation, agreed that we suspected" that the "hydrant flow test [would result] in insufficient flow".

[Note 12] Cresta testified that the 2014 Utilities Plan still needed some revisions in order to implement his recommendations (including the removal of existing water and sewer lines and replacement with a single system of water and sewer lines serving all surrounding properties). He testified that such revisions were minor, that they were agreed-to by the Applicant, and that, upon making them, would result in his approval. See discussion, supra, at n. 5 & n. 7.

[Note 13] It should be noted that the Estimate did not attempt to approximate Plaintiffs actual cost (in 1995 Dollars) of installing his water and sewer lines in 1995, but rather the present-day cost of removing Plaintiffs existing water and sewer lines and replacing same with upgraded lines tying into the municipal lines on Vaughan Place.

[Note 14] DiGiorgio testified that the Applicant provided the Estimate to Plaintiff and proposed that amount as the payoff amount under Paragraph 2(b) of the Agreement, but that Plaintiff never provided the Applicant with a counter- proposal, his own estimate of the costs of the work to install his water and sewer lines, or any proof of the actual cost of such work. Plaintiff testified that he do[es] not have the actual costs that [he] incurred to build that project.

[Note 15] Plaintiff further clarified that he felt his costs of extending Vaughan Place to its present point of termination should have been included in the amount to be paid to him. Conflictingly, however, Plaintiff also testified that his objection to the Estimate was based upon his opinion that the Estimate was premature and [because] an accurate cost could not be put on the job at this point. Theres more work required than what [the Estimate] shows. When prompted to state his reasons for rejecting the Applicants proposed payment amount (as set forth in the Estimate), Plaintiff stated only that he would not accept such amount because [i]ts insufficient.

[Note 16] In his cross-examination of DiGiorgio, and in Plaintiffs post-trial brief, Plaintiffs counsel suggested that Plaintiff sent such offer to the Applicant in October and November of 2013. In his testimony, Plaintiff stated only that he made a settlement offer prior to the parties REBA mediation.

[Note 17] Cresta and DiGiorgio testified that the ZBA also had required implementing a loop system -- which led to the March 5, 2013 revision to the Plans -- but not that the existing private lines be removed. Plaintiff testified that he had no objection to Crestas suggested arrangement wherebythe existing lines would be removed and replaced with a single system serving all properties.

[Note 18] Cresta, in his testimony, repeatedly discussed whether he would approve certain configurations of a proposed utilities system. However, he also stated that it was his role, as DPW Director, to make recommendations to the ZBA-- implying that the actual final approval decisions are made by the ZBA. In any event, pursuant to Paragraph 11(f) of the ZBA Decision, final approval of the [site plans for the Project] by the [DPW] is required, so Crestas approval of D&Ms utilities installation plans would be required.

[Note 19] Cresta further testified that, after a developer receives site plan approvals from the ZBA, the developer will come back to the DPW with a finalized utilities plan to secure DPWs recommendation of approval for same [j]ust prior to development, and that, at present, the Project is not yet at the point where a recommendation of approval of the 2014 Utilities Plan would be sought.

[Note 20] The Agreement required the Flow Test to be done by May 7, 2014, subject to the availability of the DPW. The Flow Test was actually performed on May 8, 2014, presumably to accommodate the DPWs schedule. This delay of only one day in conducting the Flow Test was de minimis.

[Note 21] The Agreement required the Modification Request to be filed by May 28, 2014, which, in fact, was done on that date.

[Note 22] Plaintiffs argument here that the Agreement would not become binding on him until he received a final, DPW- approved utilities plan is unavailing. As noted, supra, Cresta testified that the usual course of obtaining zoning approvals in the Town is that the ZBA provisionally approves submitted plans, subject to the final recommendation of approval by specific Town agencies (here, the DPW and the FDS) whose expertise is needed as to technical issues. After obtaining ZBA approval, applicants then work with those agencies to obtain a final recommendation of approval -- which may entail revisions to plan(s) already approved by the ZBA, which revised plan(s) would be submitted to the ZBA in connection with the agencys recommendation of approval. Thus, the approved plan, in Paragraph 2(c) of the Agreement, was intended to refer to the Plans, which had already been approved by the ZBA, and which would undergo revision and final approval bythe DPW to implement Crestas recommendations. However, Crestas testimony establishes that the Project is simply not yet at the point where the modified utilities plan would be expected to be submitted to him for approval. That is not expected to occur until [j]ust prior to development. Thus, all Paragraph 2(c) of the Agreement required was that the parties negotiate utilities installation -- which has occurred.

[Note 23] Here, it should be noted that the Estimate represents an approximation of what it would cost the Applicant to replace Plaintiffs existing water and sewer lines, not what it might have cost Plaintiff in 1995 to have the work done to connect his property to the water and sewer lines. It is also noteworthy that the Estimate is likely based upon the present cost to do such work, which is presumably higher than it would have been in 1995 when Plaintiff arranged for and paid for such work.

[Note 24] It is unclear whether these records are obtainable. Presumably, if Plaintiff knows who he contracted to perform such work, the records could be obtained from that contractor.

[Note 25] Moreover, even if Plaintiff had provided proof (or a counter-estimate), and even if the Estimate had not included the cost of repaving Vaughan Place, the Agreement, on its face, does not contemplate payment to Plaintiff for the cost he incurred in extending Vaughan Place to its present point of termination, only the costs incurred in installing the water and sewer lines servicing the Plaintiff Property.

[Note 26] This line of argument ties into Plaintiffs related argument that a condition precedent for the Agreement to become binding was his receipt of a final, modified, and Approved Plan implementing Crestas recommended loop system of utilities. As discussed, supra, this related argument is unavailing.

[Note 27] It should be noted that Paragraph 3 of the Agreement requires such stipulation to be drafted by the Applicants counsel by May 14, 2014. There is no indication that such stipulation was ever drafted. However, the reason for that is clearly because Plaintiff refused to negotiate in good faith with respect to his compensation to be paid pursuant to Paragraph 2(b) of the Agreement. Thus, this divergence from the time line set forth in Paragraph 3 of the Agreement is de minimis.

[Note 28] Indeed, because the Estimate represents an estimate of the present-day cost of replacing Plaintiffs existing water and sewer system with an upgraded system (and extending the municipal lines to connect to the Project), rather than the cost to Plaintiff to install his existing system in 1995, it is likely that the Estimate (which is calculated based upon the present-day costs) actually exceeds the amount Plaintiff would be entitled to simply to reimburse him for his actual costs (in 1995 Dollars). The Applicant has already agreed to pay the amount set forth in the Estimate. Thus, there would be no purpose in having Plaintiff now submit proof of his actual costs, which would onlyestablish a lower payout amount than what the Applicant has already agreed to pay.